NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Dr. S.M. Kantikar, Presiding Member
Mulkh Raj —Complainant
versus
Jaipur Golden Hospital and Ors. —Opp. Parties
Consumer Case No.70 of 2007
Decided on 25.4.2018

IMPORTANT POINT
Successful transplant surgery of kidney does not mean that transplant is indeed successful.

Headnote:Consumer Protection Act, 1986—Section 2(1)(g), 2(1)(o), 2(1)(r)(1)(ii)—Medical services—Medical negligence—Nephrology—Kidney Transplant Operation—Post-operational complications—Treating doctors and Nephrologist have followed standard procedure in instant case—Negative cross matching is pre-requisite for renal transplant—Adequate amount of urine was being produced by transplanted kidney and was some hope of recovery therefore, immediate nephrectomy was not advised—Successful transplant surgery of kidney does not mean that transplant is indeed successful—RT successful is when body accepts new organ and its functioning which becomes the most critical part—For many patients of ESRD their kidneys fail to work and dialysis and kidney transplants are only two remaining options—Around the world, yearly chronic kidney diseases over seven lakh deaths occur—However, cannot feign innocence and ignorance of absence of license of parent institution which they are an inextricable part and parcel of and hold a position of responsibility towards—This amounts to negligence covert and contributory even if not overt—Though there is no medical negligence caused by OPs, but keeping view of Unethical and Unfair Trade Practices, hospital/OP-1 shall pay Rs.10 lakhs and the OP-2 and 3 shall pay Rs.5 lakhs jointly and severally to Complainant No.1.

        Held: Now, the question is whether the negligence was occurred during the treatment (RT) of the patient and whether there were lapses during the pre-operative assessment/ treatment at OP/Hospital. On perusal of medical record, it is revealed that the patient got admitted in Jaipur Golden Hospital on 2.12.2006 for pre-operative investigations and dialysis. The kidney donor( patient’s wife Pinki) was also examined, her laboratory investigations were done on 4.12.2006 and she was found to be compatible kidney donor for her husband. The patient was evaluated and confirmed that he was the case of ESRD. Initially, he was taken up on the program of Renal Replacement Therapy (RRT) and was stabilized on maintenance Hemodialysis (MHD) via Internal Jugular Vein by a Dual lumen catheter. After preliminary investigation, he was discharged in a stable condition on 5.12.2006 and asked to come for regular dialysis from home at least twice a week. The patient and his wife (donor) were admitted in OP/Hospital on 18.12.2006 further to complete remaining investigations and discharged on 21.12.2006 and called on 25.12.2006 for renal transplant, which was fixed on 26.12.2006. Thus, the donor’s investigations were performed on out-patient basis. Dr. Lal Path Lab report dated 21.12.2006, the HLA – ABC and DR Tissue Cross Match report confirmed a “Negative cross match”. As per the report, B-cell cross match was unequivocal. Thus, it was ideal for renal transplant. The OP had explained the patient that the donor being biologically unrelated, therefore, there was need for injection ‘Zenapax’. The tissue matching report from Dr. Lal Path Lab was available on the date when operation was fixed. In my view, it was not a case of rejection of kidney. It was a graft dysfunction. In the case of rejected kidney, there will be less urine as a time advances and it was not in the instant case. It was the wrong perception of the patient that, as per Dr. Lal Path Lab’s report the donor was not suitable for RT. The complainant also alleged that Zenapax injection was given in the case of poor cross match and the injection was not kept in the refrigerator. It is pertinent to note that, RT was performed only after permission from the transplant committee of the hospital. Dr. Umesh C.D. Nautiyal explained the patient and his wife about the details of renal transplant and after signed informed consent, the renal transplant was performed on 26.12.2006. Therefore, in my view, the OP/the treating doctors and the Nephrologist have followed the standard procedure in the instant case. Moreover, the Negative cross matching is pre-requisite for renal transplant. Thus, I do agree with the allegations of the patient and do not find any negligence in the pre-operative work-up of patient and the donor.

        To know more about the Renal diseases and Transplant, I took reference from the medical text books viz. “Schrier’s Diseases of the Kidney”, the Oxford text book (2012), the “Kidney Transplantation - Principles and Practice” by Peter Morris/Expert Consult (2013). It revealed, the Acute Tubular Necrosis (ATN) is common after kidney transplantation. It is multi-factorial and represents one of the main causes of the delayed graft function. Its impact on graft and patients survival is documented.

       It should be borne in mind that, patients put so much trust in their doctors and hospitals. The institutions and doctors shall not operate in a vacuum, but they are mandated to current regulatory norms and stay within the legal and professional framework and strictly adhere to its mandated rules and regulations. Further, such regulations ensure greater public good by reposing faith in the medical practitioner who is duly qualified, registered and updated as per current norms and regulations. By an institution purporting to having held a license in the past for certain medical procedures or interventions does not automatically bestow any privileges or an unrestricted license to continue doing such procedure/s once their license has expired or revoked or suspended or anything which has the same or similar effect. Would an airline company allow a pilot to fly its airline with several hundred passengers in absence of a pilot‘s license or where a license has been revoked or suspended? The answer will be a resounding “No”. Likewise a doctor , who, with the full knowledge that he is indeed working or surgically operating in such an institution which has its license to offer certain treatments specifically discontinued, and more particularly in sensitive areas of Organ donations and Transplantation, such doctors even if licensed under current medical regulations and on the state medical register cannot justify their acts or absolve themselves by taking recourse behind their claim of holding license to practice. They cannot feign innocence and ignorance of absence of license of the parent institution which they are an inextricable part and parcel of and hold a position of responsibility towards. This in my opinion amounts to negligence covert and contributory even if not overt.

       Thus, lack of a license will raise a presumption that the care was negligent; it was professional misconduct and grave unfair trade practice; and in the larger public interest (patients) such institutions/doctors to be treated with heavy hand to curb such practices. In the instant case, license of OP-1 hospital for Renal Transplant under THOA, 1994 was expired on 3.8.2006, thus it was not in existence at the time when patient was treated. Even though, the doctors at OP-1 hospital were continued to perform renal transplants till 2009; it amounts to an unfair and unethical practice.

        Based on the foregoing discussion, though I do not find any medical negligence caused by the OPs, but keeping the view of Unethical and Unfair Trade Practices, the OP-1 hospital including the doctors OP 2 and 3 are held liable under Section 2 (1) (r) (1) (ii) of the Consumer Protection Act,1986. The complaint is partly allowed. It is ordered that, the hospital/OP-1 shall pay Rs.10 lakhs and the OP-2 and 3 shall pay Rs.5 lakhs jointly and severally to the Complainant No.1 within six weeks from today; failing which, respective OPs shall liable to pay interest at 9% p.a., till it’s realization.

        (Paras 5, 6, 11, 15 and 16)

       Result: Appeal allowed.